Judgment:
Hari Shankar Prasad, J.
1. This appeal, at the instance of the appellants, is directed against the judgment and decree dated 15.4.1993 and 26.4.1993 respectively passed in Title (Matrimonial) Suit No. 20/89, whereby and whereunder the learned 6th Additional Judicial Commissioner, Ranchi decreed the title (matrimonial) suit and passed a decree of divorce.
2. Case of the plaintiff-respondent in brief is that plaintiff- respondent is the husband of appellant No. 1 Meena Devi and marriage between both of them was solemnised on 17.6.1981 at Church Road, Gudri, Ranchi according to Hindu rites and after solemnization of marriage appellant No. 1 was brought to her sosural by plaintiff-respondent and on the very day of suhagrat plaintiff-respondent came to know that his wife appellant No. 1 is behaving like a child, although she was aged about 20 years on the date of suhagrat and was a mentally retarded lady. When this fact was brought to the parents of the appellant No. 1 then respondent was assured that this is a curable disease and she will be cured within a year and on the basis of that assurance she used to be sent to her naihar for treatment and when appellant No. 1 was again sent to her sasural on the plea that she has now recovered from the disease but in her sosural she always behaved like a 7 years' child and in this way about 8 years passed and there was no consummation of marriage. Appellant No. 1 was examined by a doctor, who after examination, submitted a report that she is suffering from incurable form of disease and she is virgin still then. Plaintiff-respondent then filed the aforesaid title (matrimonial suit in which appellants appeared and filed written statement stating, inter alia, therein that application for divorce under clause 13(iii)(a) of the Hindu Marriage Act, 1955 is not maintainable. It was further alleged that this application for-divorce has been filed as a counter blast to the complaint lodged by the appellant No. 1 and her father before the police for illtreatment made by plaintiff-respondent and his family members and there was a denial that appellant No. 1 is a victim of mental disorder and incomplete development of mind. She behaves normal in normal condition and so her treatment in mental hospital does not arise. On the other hand allegation has been levelled against the plaintiff-respondent that he and his family members demanded Rs. 25,000/- as dowry and when their demand was not fulfilled they assaulted appellant No. 1 and lodged an information to the police and a case is pending before the learned Judicial Magistrate, Ranchi.
3. On the pleadings of the parties, the ' learned Court below framed the following issues for their consideration and determination :--
(1) Has the petitioner any cause of action for the suit?
(2) Whether the suit as framed is maintainable?
(3) Is the respondent No. 1 mentally retarded person?
(4) Has the petitioner ill-treated the respondent No. 1?
(5) Whether the petitioner's claim for a claim for a decree for divorce is correct?
4. 6 witnesses were examined on behalf of the plaintiff- respondent and three witnesses were examined on behalf of the opposite parties-appellants. After considering the evidence recorded on behalf of both the sides, the learned Court below came to a finding and decreed the suit in favour of the plaintiff-respondent.
5. While assailing the judgment of the learned Court below, the learned counsel for the appellants submitted that the learned Court below did not appreciate the evidence correctly and came to an erroneous finding. It was further submitted that in fact the appellant No. 1 was not suffering from any mental disorder and whatever evidence has been led on behalf of the plaintiff- respondent that evidence was not sufficient to make out a case that appellant No. 1 was suffering from mental disorder and that she is a schizophrenic patient. The frequent clashes always take place in every family and in between husband and wife and that cannot be a ground to hold the other side that she is suffering from mental disorder or like that and she is not capable of leading married life with her husband. The learned counsel further pointed out that findings of the learned Court below was not justified also on the ground that prior to the filing of this title (matrimonial) suit the appellant No. 1 had already lodged a case for ill-treatment and demand of dowry of Rs. 25,000/- and that case was pending before the learned Judicial Magistrate and this aspect of the matter was not considered by the learned Court below and learned Court below came to an erroneous finding and allowed the case in favour of the plaintiff-respondent. In this connection, learned counsel placed reliance upon AIR 1991 Bombay 259, wherein it has been held that a few stray instances indicating a short tempered nature and somewhat erratic behaviour and that much of evidence is not sufficient for holding a case of mental disorder and mental disorder must be of such a kind and to such an extent that one spouse cannot reasonably be expected to live with the other. Reliance has also been placed upon AIR 1988 SC 2260, wherein it has been held that mere branding of spouse as schizophrenic is not sufficient and degree of mental disorder of the spouse must be proved to be such that petitioning spouse cannot reasonably be expected to live with other. It was further submitted that, in the instant case, no such finding by the doctor about the instance of mental disorder, has been given and, therefore, no case for divorce is made out. ,
6. AW 1 is brother-in-law of the plaintiff-respondent. In paragraph 2 of his deposition he has stated that appellant No. 1 behaves like child and before marriage mental condition of the appellant No. 1 was not given to him.
7. AW 2 is a witness on visiting terms with the plaintiff- respondent. He has also stated about the mental condition of appellant No. 1.
8. AW 3 is Ajay Kumar. He is a teacher and he has stated that appellant No. 1 was shown to mental hospital.
9. AW 4 is a doctor in the Mental Hospital, Kanke. He had examined appellant No. 1 on 11.3.1989 when he found her a mentally retarded lady. He has proved a slip also (Ext. 1). He says that a mentally retarded patient if so found from birth, such patient may be cured.
10. AW 5 is brother of plaintiff-respondent. He also confirms about the childish behavior of Meena Devi, appellant No. 1.
11. AW 6 is plaintiff-respondent himself. According to him, at the time of marriage his wife was aged about 18-19 years and he came to know from that very day about her childish behavior and he did not know the meaning of marriage and special relations that are observed after marriage. He further says that his wife remained in his house for so may years but he did not have any physical relationship with his wife, as a result of which he suffered from mental cruelty. This fact was brought to the knowledge of her parents but they stated that her treatment is going on and within some days he will be cured. He also took his wife to mental hospital, where AW 4 examined her and he ultimately came to know the finding of the doctor that mentally retardation starts from the birth and this sort of mental retardation is not curable. He says that appellant No. 1 was examined by Dr. Usha Rani, she is a Gynecologist.
12. On the other hand, three witnesses have been examined on behalf of the appellant No. 1. OPW 1 is the brother of Meena Devi, appellant No. 1. He has denied and stated that his sister was never suffering from any mental disorder and she was never examined by any doctor for mental disorder.
13. OPW 2 is the wife of OPW 1. She also stated about good mental conditions of her nanad, appellant No. 1.
14. OPW 3 is appellant No. 1 herself. She has also denied that she is suffering from any mental disorder and has alleged that since a case on her behalf has been filed against the respondent and his family members, that is why on this false allegation this matrimonial suit has been filed.
15. The learned Court below properly examined the evidence both oral and documentary and had come to a finding that appellant No. 1 is a mentally retarded and it is difficult for the respondent to live with appellant No. 1 and pass his days. I too, from perusal of evidence examined on behalf of both the sides, come to a finding that appellant No. 1 is suffering from mental retardation and is a schizophrenic patient. It is true that degree of mental retardation has not been given by AW 4 in the report but that should not come in the way that as degree of mental retardation has not been given, then on this very ground case should be dismissed because AW 4 has also given a finding that this form of mental retardation is incurable and when appellant No. 1 is incurable then it is difficult for the respondent to live and pass his days with such a lady. Further when test was carried out she was found to be a virgin and, therefore, it is clear that after so many years of married life there was no consummation between both appellant No. 1 and respondent and this is definitely a case of mental cruelty to the respondent because there was no physical relationship between both of them. It is also clear from the facts, which have come on record, that case of mental disorder of appellant No. 1 was concealed from the respondent and marriage was solemnized between both of them.
16. From the discussions made above, I am of the view that this appeal does not require any interference and in the result, this appeal is dismissed and the suit is decreed but in the circumstances, without any order as to costs.